People v. Douglas

• Decision Date: 02 April 1990
• Docket Number: No. S004666,S004666
• Citation: 268 Cal.Rptr. 126,50 Cal.3d 468,788 P.2d 640
• Court: California Supreme Court
• Parties: , 788 P.2d 640 The PEOPLE, Plaintiff and Respondent, v. Fred Berre DOUGLAS, Defendant and Appellant. Crim. 24475.

Page 126

268 Cal.Rptr. 126

50 Cal.3d 468, 788 P.2d 640

The PEOPLE, Plaintiff and Respondent, v. Fred Berre DOUGLAS, Defendant and Appellant.

No. S004666.

Crim. 24475.

Supreme Court of California In Bank.

April 2, 1990.

As Modified on Denial of Rehearing

June 21, 1990.

Amitai Schwartz, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White and Richard B. Iglehart, Chief Asst. Attys. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Michael D. Wellington, Robert M. Foster and Pat Zaharopoulos, Deputy

Attys. Gen., San Diego, for plaintiff and respondent.

LUCAS, Chief Justice.

Defendant Fred Berre Douglas appeals from a judgment imposing death following his conviction of two counts of first degree murder (Pen.Code, § 187 et seq.; all further statutory references are to this code unless otherwise indicated), accompanied by the special circumstance finding of multiple murder (§ 190.2, subd. (a)(3)) in connection with the 1982 killings of 19-year-old Beth Jones and 16-year-old Margaret Kreuger. We affirm the judgment in its entirety.

I. FACTS AND PROCEDURE

A. Guilt Phase Evidence

The case against defendant was based substantially on the testimony of his accomplice, Richard Hernandez, who was granted immunity from prosecution in exchange for his testimony. Another witness, Kathy Phillips, also testified for the prosecution pursuant to a promise of immunity. Hernandez's and Phillips's statements were substantially corroborated by physical evidence and other witnesses.

1. Phillips's Testimony

In 1979, Phillips, a heroin addict, wanted money to buy drugs. Her friend, Richard Hernandez, worked next door to defendant's furniture refinishing shop in Santa Ana. Hernandez often supplied Phillips with drugs. He introduced Phillips to defendant, who told her he would pay her if she posed for nude photographs while in bondage. Phillips agreed to pose for defendant and shortly thereafter defendant took her to his shop, where he tied her hands and ankles and gagged her mouth. According to Phillips, defendant showed her photographs of several other women to indicate how he wanted her to pose. He also instructed her to "look scared" but did not harm her during the photo session. Defendant paid Phillips $40 after he had taken pictures of her with a Polaroid camera for about an hour. Phillips eventually left the shop with Hernandez, who then purchased drugs for her.

Two weeks after the above incident, defendant asked Phillips if she would assist him in killing young women in the desert while making sex films that included bondage, sadism and homosexual scenes. Defendant believed that Phillips's presence during the filming would make it easier for the victims to trust him--thus making his crime easier to commit. According to Phillips, defendant told her he would bury the bodies so that no evidence would be discovered and that he would make a lot of money (around $35,000) by selling the films to "people in Las Vegas."

Phillips testified that although her drug habit kept her from going to the police, she told defendant she did not want to participate in the crimes. She also stated she continued to frequent defendant's furniture shop even after his proposition because she was dependent on Hernandez to supply her with drugs.

About a month after defendant attempted to enlist Phillips as an accomplice in his sex-and-murder film scheme, Phillips went to defendant's shop in order to meet Hernandez. She instead encountered defendant, who asked her "what she was going to do" about his earlier proposition. On another occasion, Phillips said defendant called her to tell her he "had a woman with him" and wanted to "carry out his plan." Phillips told defendant she did not want to be part of his scheme. Her contact with defendant ended when she was convicted of burglary and sentenced to county jail for one year.

2. Hernandez's Testimony

Hernandez began working for defendant at his furniture refinishing shop in 1981. He was paid in food, beer, lodging and occasional spending money. He lived in defendant's boat that was parked behind the shop. Hernandez drank beer throughout each day. After Hernandez had been working for defendant for almost eight months, defendant asked him to have a coworker drive Hernandez to his house in Costa Mesa. When Hernandez arrived, he saw an unconscious naked woman lying on a sofa bed in the living room. Defendant told Hernandez he had drugged the woman. He instructed Hernandez to take off his clothes so he could take pictures of Hernandez with the woman. Hernandez removed his clothing, and posed with the woman. Defendant told Hernandez to insert a baton inside the woman's vagina, but it would not fit. Instead, Hernandez put butter on the object and inserted it inside her rectum. Defendant then told Hernandez to place his penis in the woman's mouth so that defendant could take a picture. When the woman awoke three days later, defendant and Hernandez let her go.

On the day of the murders the two victims met defendant and Hernandez in a 7-Eleven parking lot. The foursome drove, in defendant's car, to the desert south of Indio. ¹ During the drive, Hernandez drank beer, and he and Kreuger smoked marijuana. When they arrived at the desert, Kreuger and Hernandez smoked more marijuana, and Hernandez followed defendant's instructions to lay a sheet on the ground and prepare rum and cokes for the four of them.

After the foursome relaxed for an hour, defendant instructed the victims to remove their clothing. Kreuger asked defendant if she could see the money, and defendant showed her a $100 bill. Defendant then gave Hernandez a rope (which, Hernandez testified, was "a bit thicker than venetian blind cord") and told him to tie up the victims. Hernandez tied their feet at the ankles and then tied their hands behind their backs. When Kreuger asked defendant where he kept the camera, he and Hernandez walked to the car, where defendant retrieved a rifle from the trunk. Hernandez testified that he became scared when he saw the gun. On returning to the victims, defendant put a clip in the rifle and told them "[h]ere's the camera." He then told the victims to "make love to each other."

Hernandez testified that for the next 10 to 15 minutes, defendant paced back and forth, shouting instructions first to one victim, and then to the other. He ordered one victim (Hernandez could not remember whether it was Jones or Kreuger) to kiss the other's feet, and then stated he wanted "some tongue on her crotch." When the victims requested a drink, Hernandez gave them each a sip of soda. Hernandez recalled that he continued to drink alcohol during the time defendant was shouting instructions to the victims, because he was "afraid of defendant."

Hernandez testified that after he gave the women a drink, defendant cut Kreuger on the neck with a razor blade and sucked on the open wound for about 10 minutes. When defendant stopped sucking the cut, he retrieved a beer from the cooler and told Hernandez that the women "just couldn't go back."

Thereafter, defendant told the victims to suck on his penis, while they remained in a kneeling position. The victims next began to orally copulate Hernandez. When he was unable to sustain an erection, he told defendant that he had to urinate. As he squatted to defecate behind a bush, Hernandez heard one of the victims yell "Leave her alone!" Hernandez stated that as he walked back toward the victims, he saw defendant choking Jones. He also noticed that Kreuger was dead, blood spurting from her mouth. Hernandez claimed he attempted to knock defendant off of Jones, but that defendant knocked him down instead. According to Hernandez, he was too "messed up," after using drugs and drinking beer, to stop defendant. After choking Jones, defendant hit her with the wooden butt of his rifle, killing her.

Defendant then told Hernandez that the heat was bothering him, and he wanted to get a drink at a bar in town. Hernandez covered the victims with a sheet and hid their bodies behind a bush before the two men went to a bar in Borrego Springs, where they consumed several drinks each. When they returned to the desert, defendant told Hernandez to untie the ropes and to remove all jewelry from the victims (along with anything else that could be used to identify them). Defendant told Hernandez the items would be thrown away on the trip back to Orange County. He also told Hernandez to dig a grave and to bury the bodies. Defendant then left the scene for an hour while Hernandez followed his instructions. When defendant returned to the desert, the two men drove to Borrego Springs where they placed the sheets, ropes and the victims' clothing in a dumpster behind a market. The men then drove back to defendant's shop.

The next day, defendant instructed Hernandez to return to the murder site to find the razor blade that he used to cut Kreuger's neck. Hernandez did as he was told, but failed to find the blade.

When Hernandez returned to the shop, he found it locked. Defendant told him that someone had called the shop and asked for "Jack" and that unknown persons had tried to "break in." Defendant instructed Hernandez that if the "burglars" returned, he was to call the Garden Grove police at a certain number. Defendant then gave Hernandez a rifle and told him, "Anybody comes, shoot at them." According to Hernandez, defendant told him to sleep on a "glue table" inside the shop.

After defendant left the shop, a woman called and asked for "Jack." Later that evening, Hernandez called the police after he was awakened by a noise on the roof. According to Hernandez, at least one officer believed that those attempting to break into defendant's shop were angry over a "drug burn."

The next day, Hernandez and defendant were questioned at the Garden Grove Police Department about the disappearances of Kreuger and Jones. Hernandez recited an alibi...